License Agreement and Terms of Service for LighthousePE
1. Your Acceptance of Terms
This License Agreement and Terms of Service (“Terms of Service”) is between you and Off Madison Ave, LLC dba LighthousePE, located at 5555 E Van Buren St #215, Phoenix, AZ 85008 (“LighthousePE”, “us”, “we”), and constitutes a legal agreement that governs your use of the LighthousePE SDK (software development kit), software, service and mobile application development and any other service or product provided by Lighthouse to which these terms are referenced (collectively referred to as the “Service”). You agree to these Terms of Service by using the Service. If you do not agree to any of the following terms, please do not use the Service. If you have a written agreement with us, the terms in that agreement will apply to your use of the Service and supersede the terms in these Terms of Service with respect to any provisions in conflict.
If you are entering into these Terms of Service on behalf of a company or other legal entity, you represent you have the authority to bind such entity and its affiliates to these Terms of Service, in which case the terms “you” or “your” shall refer to such entity and its affiliates. If you do not have such authority, you must not accept these Terms of Service and may not use the Services.
Changes to these Terms of Service
LIGHTHOUSEPE MAY UPDATE OR CHANGE THESE TERMS OF SERVICE FROM TIME TO TIME AND RECOMMENDS THAT YOU REVIEW THE TERMS OF SERVICE ON A REGULAR BASIS. YOU UNDERSTAND AND AGREE THAT YOUR CONTINUED USE OF THE SERVICE AFTER THE TERMS OF SERVICE HAS CHANGED CONSTITUTES YOUR ACCEPTANCE OF THE TERMS OF SERVICE AS REVISED.
2. Description of the Service
The Service consists of (a) an SDK with software you can incorporate into and use in your mobile applications (“Your Apps”) that are downloaded by individuals (“End User(s)”) to their mobile or cloud connected devices (“Device(s)”), and (b) an online service that collects and analyzes data from those End User Devices, as well as data from real world environments, for the purpose of delivering personalized communications to an End User’s Device based on both geographical position and micro-position, in a building or in an open-air environment. The Service employs bluetooth and spatial technology to track an End User’s movements and creates individualized information and experiences at or within specified physical proximity locations. The Service also stores End User Data (as defined below) and analyzes End User behaviors as instructed by the End User or your software administrator, or both. Your software administrator can customize delivered content in real-time for each End User via a cloud connected interface to the Service. You are responsible for providing, maintaining and ensuring the compatibility of all hardware, software, electrical, Internet and other physical requirements necessary for your use of the Service.
Your annual subscription fee (“Subscription Fee”) will be the annual subscription fee that we agree in writing, or if no such subscription fee is listed, will be the fee posted on the Service website page describing our fees. Your Subscription Fee: (i) is based on the Service purchased and not actual usage or quantities purchased; (ii) cannot be decreased during the relevant annual subscription term (“Subscription Term”); and (iii) is non-cancelable and will not be prorated or refunded in any way. If you cancel your Account (as defined below) before the end of your current Subscription Term, we will continue to provide online access to the Service to you until the end of that Subscription Term and then terminate your access to the Service without charging you a renewal fee. Subscription Fee renewal is automatic unless you notify us in your Account at least 30 days before the end of the Subscription Term. We reserve the right to change the price of the Service at any time, but your Subscription Fee will not be increased until the next renewal date.
Subscription Fees and other fees do not include any taxes, levies, duties or similar governmental assessments of any nature. You are responsible for paying all taxes associated with your purchase hereunder. If we have the legal obligation to pay or collect taxes for which you are responsible under this section, we will invoice you, and you will pay that amount unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority.
Changing the Service
We reserve the right to modify, suspend or stop the Service (or any part thereof), either temporarily or permanently, at any time or from time to time, with or without prior notice to you. Without limiting the foregoing, we may provide notice of any such changes to the Service by posting them on the Service website, in your Account, or both. You agree that we shall not be liable to you or any third party for any modification to or cessation of the Service. You acknowledge that we have no express or implied obligation to provide, or continue to provide, the Service, or any part thereof, now or in the future.
Limitations on Use
We may impose certain limitations on the use of the Service, including, but not limited to, allocating certain levels of storage capacity to your Account, restricting the number of Accounts you may register, imposing expiration dates on Your Content (as defined below), and removing expired Content from the Service. You agree to use the Service only for purposes permitted by these Terms of Service and any applicable law, regulation, or generally accepted practice in the applicable jurisdiction. We reserve the right to modify or impose any limitations on the use of the Service at any time, with or without notice to you.
To sign-in and activate the Service, you must set up an account (“Account”). This Account will be used to set up the Service for you. Please choose a strong password for your Account, only share the password with Your Users (as defined below) that need to know it, and do not reveal your password to others. You agree that you are responsible for keeping your password confidential and secure, and further understand that you are solely responsible and liable for any activities that occur through your Account. You must immediately notify us of any known or suspected unauthorized use of your Account or any known or suspected breach of security, including, but not limited to loss, theft, or unauthorized disclosure of your password. You agree to check your Account on a regular basis for information that we may post in the Account requiring your attention or action.
No Resale of Service
You agree that you will not reproduce, copy, duplicate, sell, resell, rent or trade the Service (or any part thereof) for any purpose unless approved by us in writing.
3. Invoicing and Payment
You will provide us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to us. If you provide credit card information to us, you authorize us to charge such credit card for the Subscription Fee for your initial Subscription Term, and for any renewal Subscription Term(s). Subscription Fees are due and shall be paid in advance. If the payment will be by a method other than a credit card, we will invoice you in advance. Invoiced Subscription Fees (and any other service fees) are due net 15 days from the invoice date, provided however, that in any event Subscription Fees must be paid prior to the beginning of any Subscription Term. You are responsible for providing complete and accurate billing and contact information to us and notifying us of any charges to such information.
If any invoiced amount is not received by us by the due date, then without limiting our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and (b) we may suspend your access to the Service. You will be responsible for any and all fees imposed on us by fault of a declined payment method.
If any amount owing by you under this or any other agreement for our services is 30 or more days overdue, we may without limiting our other rights and remedies, (a) accelerate your unpaid obligations under such agreements so that all such obligations become immediately due and payable, (b) suspend your access to the Service or other services until such amounts are paid in full, (c) condition future subscription renewals on payment terms that are shorter than those specified in this Section, or (d) terminate these Terms of Service for cause with no further access to the Service.
4. End User Data, Confidential Information, and Data Privacy
End User Data
As between you and us, we own all right, title, and interest in any and all information regarding End Users uploaded, transmitted, stored, or generated by the Service (“Our End User Data”), including all intellectual property rights therein. Provided, however, that you will continue to own all right, title, and interest in all original data regarding End Users that you store in your systems or records (“Your Original End User Data”), including all intellectual property rights therein (Our End User Data and Your End User Data collectively referred to as “End User Data”).
Each party shall keep the other party’s Confidential Information secret and shall disclose Confidential Information only to its employees and contractors with a need to know under these Terms of Service and that are subject to confidentiality obligations substantially similar to those herein. “Confidential Information” means all nonpublic information concerning the business, technology, products, specifications, services, databases, data, pricing, procedures, and strategies of a party, and any other information labeled by a party as “confidential” or that a reasonable person would understand to be confidential or proprietary. Without limitation, our Confidential Information includes the Service, the Software (as defined below), and Our End User Data. The following information will not be considered Confidential Information: (a) information which was in the public domain prior to its disclosure; (b) information which becomes part of the public domain by any means other than through violation of these Terms of Service; (c) information independently developed without reference to the other party’s Confidential Information; or (d) information received from a third party not under any obligation of confidentiality with respect to such information.
5. Content and Your Conduct
“Your Content” means any graphics, designs, audio or visual files, photographs, images, computer code, files or programs, and other information and materials that are created or transmitted by you via the Service, including without limitation the content of messages and other communications created or distributed via the Service to End Users. As between you and us, you own all right, title and interest in and to Your Content, including any and all intellectual property rights therein. By uploading, transmitting, or posting Your Content, you hereby grant to us a limited, non-exclusive, royalty-free license to use, copy, print, reproduce, modify, edit, post, and transmit Your Content in whole or in part solely as set forth in these Terms of Service. You, not us, are solely responsible for Your Content that you upload, transmit, store or otherwise make available through your use of the Service.
The Service may contain graphics, designs, audio or visual files, photographs, images, computer code, files or programs, and other information and materials owned by third parties provided by you or us (“Third Party Content”), which may also be incorporated into communications to End Users distributed via the Service. As between you and us, all rights to such Third Party Content remain with the applicable third party provider. We do not control Your Content or any Third Party Content transmitted, stored, or otherwise made available via the Service, nor do we guarantee the accuracy, integrity or quality of Your Content or any Third Party Content. You, not us, are solely responsible for any Third Party Content that you upload, transmit, store or otherwise make available through your use of the Service.
“Our Content” means any graphics, designs, audio or visual files, photographs, images, computer code, files or programs, and other information and materials that are created or transmitted, stored, or otherwise made available by or for us via the Service, including without limitation the content of messages and other communications to End Users created by or for us. As between you and us, we own all right, title and interest in and to Our Content, including any and all intellectual property rights therein.
You understand and agree that your use of the Service and Our Content and Third Party Content is solely at your own risk.
You agree that you will NOT:
Engage in any copyright infringement or other intellectual property infringement, or disclose any trade secret or confidential information in violation of a confidentiality, employment, or nondisclosure agreement;
Upload, transmit, store or otherwise make available any material that contains viruses or any other computer code, files or programs designed to harm, interfere with or limit the normal operation of the Service, or any other computer software or hardware;
Harvest or compile information or Our End User Data from the Service for any reason, including without limitation, any competitive purpose;
Use the Service, Our Content, or Our End User Data to develop or sell products or services similar to the Service;
Engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Service, or which, as determined by us, may harm Lighthouse or users of the Service, or expose Lighthouse to liability;
Interfere with or disrupt the Service (including accessing the Service through any automated means, like scripts or web crawlers), or any servers or networks connected to the Service; or
Include in Your Content, or upload, or transmit any content, that is or encourages unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, pornographic, profane, indecent, sexually explicit, or hateful actions, or that is invasive of another’s privacy or intended to offend any person based on a person’s race, ethnic heritage, national origin, sex, sexual orientation or preference, age, physical or mental illness or disability, marital status, employment status, housing status, or religion.
Removal of Content
We do not pre-screen or approve Your Content, or any Third Party Content you upload to the Service, and we have no obligation to monitor any of the foregoing. However, we reserve the right at all times to screen, move, refuse, modify and/or remove Your Content and/or Third Party Content at any time, without prior notice and in our sole discretion, if we in good faith believe Your Content and/or Third Party Content is in violation of these Terms of Service or applicable laws or regulations.
Back Up Your Content
You are responsible for backing up, to your own computers or other devices, Your Content, Your End User Data, and any Third Party Content that you upload, transmit or store through the Service. You acknowledge that Your Content, Your End User Data, and any Third Party Content you may upload, transmit or store through the Service may be subject to damage, corruption or loss at any time. We do not export Your Content, Your End User Data or other information or data to you during your use of the Service, or provide Your Content, Your End User Data, or any of Our End User Data when your Account is closed.
Access to Your Account and Content
You acknowledge and agree that we may access, use, preserve and/or disclose your Account information, Your Content, and any Third Party Content you provide if legally required to do so, or if we have a good faith belief that such access, use, disclosure, or preservation is reasonably necessary to: (a) comply with legal process or request; (b) enforce these Terms of Service, including investigation of any potential violation thereof; (c) detect, prevent or otherwise address security, fraud or technical issues; or (d) protect our rights, property or safety, or those of our users of the Service or the public (as required or permitted by law). You understand that in order to provide the Service, we may transmit Your Content and any Third Party Content you provide across various public networks, in various media, and may modify or change Your Content or any Third Party Content you provide to comply with technical requirements of connecting networks or devices. You hereby authorize us to take any such actions.
Any comments, feedback, information, or materials relating to the Service (“Feedback”) that you submit to us shall become our property. By submitting Feedback to us, you agree to assign, and hereby irrevocably assign to us, all right, title, and interest in and to the Feedback, and all copyrights and other intellectual property rights therein. We shall be free to use Feedback on an unrestricted basis. You hereby assign and/or waive, as the case may be, any moral rights you may have in or to the Feedback.
6. Our Property; Your License
LighthousePE™, the LighthousePE logo, Off Madison Ave™, Off Madison Ave Advertising ˜Public Relations®, and other registered and unregistered trademarks, service marks, graphics, and logos used in connection with the Service, are owned by us, including all intellectual property rights therein. Other trademarks, service marks, graphics, and logos used in connection with the Service are the trademarks of their respective owners, including all intellectual property rights therein. You are granted no right or license in any of the aforesaid trademarks, and further agree that you shall not remove, obscure, or alter any trademarks or any proprietary notices (including trademark and copyright notices) that may be used with, posted on, or contained within the Service.
We or our licensors own all right, title and interest in and to the Service, including without limitation Our Content, Our End User Data, and any SDK or software provided by as a part of and/or in connection with the Service (such SDKs and software collectively referred to herein as “Software”), including any and all intellectual property rights therein.
We hereby grant you a personal, non-exclusive, non-transferable, limited and fully-paid license to use the Software, Our Content, Our End User Data, and Third Party Content (“Licensed Property”) as provided to you by or for us as a part of the Service, and to make print and make limited copies of Our Content and Our End User Data, solely for the purposes of using the Service for your internal business purposes in accordance with these Terms of Service. You shall not (and shall not permit anyone else to) copy, modify, create derivative works of, reverse engineer, decompile, frame, screen capture, reprint, republish, attempt to discover Software source code (unless expressly permitted by us or required by law), sell, lease, sublicense, assign, grant a security interest in or otherwise transfer any right in the Licensed Property. No other rights or licenses are granted to the Licensed Property and all other rights are expressly reserved by Lighthouse.
7. Export Control
Use of the Service, including transmitting or uploading Your Content or your Third Party Content via the Service, may be subject to the export and import laws of the United States and other countries. You agree to comply with all applicable export, import, and other applicable laws and regulations relating to your use of the Service and/or your transmitting or uploading of Your Content or any Third Party Content, including without limitation, your export or import of any Software we provide to you for use in Your Apps or your systems. You also agree that you will not use the Service, Our Content, or Our End User Data for any purposes prohibited by United States or other laws or regulations.
Termination by Us
We may terminate your Account without further notice if you breach these Terms of Service, and you do not cure that breach within 30 days after the date of our written notice to you of that breach.
We may at any time, under the following circumstances and without prior notice, immediately terminate or suspend all or a portion of your Account and/or access to the Service: (a) violations of the Terms of Service or any other policies or guidelines that are posted on the Service; (b) a request by you to cancel or terminate your Account; (c) our discontinuance or material modification to the Service or any part thereof; (d) a request and/or order from law enforcement, a judicial body, or other government agency; (e) where provision of the Service to you is or may become unlawful; (f) unexpected technical or security issues or problems; or (g) your participation in fraudulent or illegal activities. Any such termination or suspension shall be in our sole discretion, and we will not be responsible to you or any third party for any damages that may result or arise out of such termination or suspension of your Account and/or access to the Service.
Effects of Termination
Upon termination of your Account, you will lose all access to the Service and all portions thereof, except as set forth in Section 2 above. Sections that by their nature should survive termination of these Terms of Service shall so survive, including without limitation, Sections 4, and 10-16.
9. Links and Third Party Content
Certain features of the Service may include Third Party Content and/or hyperlinks to other websites and online resources of third parties (collectively, “Third Party Resources”). Because we have no control over the content in or functions of any Third Party Resources, you acknowledge and agree that we are not responsible for the availability or function of any Third Party Resources, and we do not endorse or warrant the accuracy of any content contained in the Third Party Resources. You further acknowledge and agree that we shall not be responsible or liable in any way for any damages you incur or allege to have incurred, either directly or indirectly, as a result of your use and/or reliance upon any Third Party Resources.
10. Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE, OUR CONTENT, OUR END USER DATA, THIRD PARTY RESOURCES, AND ANY SERVICES WE MAY PROVIDE IS AT YOUR SOLE RISK, AND THE FOREGOING ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE AND OUR AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, CONTRACTORS, AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND COURSE OF DEALING. WITHOUT LIMITING THE FOREGOING, WE AND OUR AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, CONTRACTORS, AND LICENSORS DO NOT WARRANT THAT (I) THE SERVICE, OUR CONTENT, OUR END USER DATA, OR ANY THIRD PARTY RESOURCES WILL MEET YOUR REQUIREMENTS; (II) YOUR USE OF THE SERVICE, OUR CONTENT, OUR END USER DATA, OR ANY THIRD PARTY RESOURCES WILL BE TIMELY, UNINTERRUPTED, SECURE OR ERROR-FREE; AND (III) ANY DEFECTS OR ERRORS IN THE SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICE WILL BE CORRECTED. YOU ARE SOLELY RESPONSIBLE FOR YOUR APPLICATION OF THE SOFTWARE AND INTEGRATION OF THE SOFTWARE INTO YOUR APPS.
ANY OF YOUR CONTENT, YOUR END USER DATA, OR YOUR THIRD PARTY CONTENT TRANSMITTED, STORED, OR OTHERWISE MAINTAINED THROUGH THE USE OF THE SERVICE IS DONE SO AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO EQUIPMENT, LOSS OR CORRUPTION OF DATA THAT RESULTS FROM ANY SUCH USE OF THE SERVICE. YOU FURTHER ACKNOWLEDGE THAT THE SERVICE IS NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN, ANY CONTENT, DATA OR INFORMATION PROVIDED BY OR THROUGH THE SERVICE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS OF SERVICE. WE HAVE NO OBLIGATION TO PROVIDE ANY TECHNICAL SUPPORT UNDER THE TERMS OF SERVICE.
11. Limitation of Liability
NEITHER YOU OR WE, NOR OUR RESPECTIVE AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, CONTRACTORS, OR LICENSORS, SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSSES (EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RELATING IN ANY WAY TO THESE TERMS OF SERVICE, INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM: (I) THE USE OF OR INABILITY TO USE THE SERVICE; (II) ANY CHANGES MADE TO THE SERVICE OR ANY TEMPORARY OR PERMANENT CESSATION OF THE SERVICE OR ANY PART THEREOF; (III) THE UNAUTHORIZED ACCESS TO, DELETION OF, CORRUPTION OF, ALTERATION OF, OR FAILURE TO STORE AND/OR SEND OR RECEIVE YOUR CONTENT, END USER DATA, OR THIRD PARTY CONTENT; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY RELATING TO THE SERVICE; AND/OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO BREACH BY EITHER PARTY OF ITS CONFIDENTIALITY OBLIGATIONS OR SECTION 5 “YOUR CONDUCT” UNDER THESE TERMS OF SERVICE. EXCEPT FOR OUR BREACH OF CONFIDENTIALITY OR FOR THIRD PARTY CLAIMS OF INFRINGEMENT OF THE SERVICE, IN NO EVENT WILL THE TOTAL COLLECTIVE LIABILITY OF LIGHTHOUSE UNDER THESE TERMS OF SERVICE EXCEED THE AGGREGATE FEES ACTUALLY PAID BY YOU UNDER THESE TERMS OF SERVICE DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE. IN NO EVENT WILL THIS LIMITATION APPLY TO THE AMOUNTS DUE FOR SERVICES UNDER THESE TERMS OF SERVICE.
Each party hereto agrees to defend, indemnify and hold the other and its affiliates, subsidiaries, directors, officers, employees, and agents harmless from any claim or demand, including reasonable attorneys’ fees, made by a third party (“Claims”), relating to or arising from the indemnifying party’s breach of these Terms of Service. In addition, you agree to defend, indemnify and hold us and our affiliates, subsidiaries, directors, officers, employees, and agents harmless from any Claims relating to or arising from Your Content, Your End User Data, and/or any Third Party Content you submit, upload, transmit, store or otherwise make available through the Service, or your use of the Service.
We may provide you with notices regarding the Service or relating to these Terms of Service, including changes to these Terms of Service, by email or regular mail to the addresses you include in your Account, or by posting in your Account. You may provide with us with notices relating to these Terms of Service by sending them regular mail to the address set forth in Section 1 (or any future address that we may in your Account or provide to you in writing). Notices shall be deemed received upon confirmed email, posting in your Account, or 3 days after sending via regular mail.
14. U.S. Government Rights
All Software is provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(iii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of Commercial Computer Software – Restricted Rights at 48 CFR 52.227-19, as applicable. Contractor/manufacturer is Off Madison Ave., LLC, 5555 E Van Buren St #215, Phoenix, AZ 85008.
15. Governing Law; Dispute Resolution
Any litigation or other dispute resolution between you and us arising out of or relating to these Terms of Service or your use of the Service will take place in the state or federal courts in the State of Arizona, and you and we hereby consent to the personal jurisdiction of and exclusive venue of such courts with respect to any litigation or dispute resolution. These Terms of Service (and any related statements of work) will be governed by and construed in accordance with the laws of the United States and the State of Arizona, excluding its conflict of laws rules. In any action to enforce these Terms, the prevailing party will be entitled to costs and attorneys’ fees. You agree that any claim or cause of action arising out of or related to these Terms of Service or the use of the Service must be filed within one year after the cause of action arose or be forever barred.